Thursday, June 21, 2018

Repeating 1988 judiciary crisis to fix Najib?

Heard it from one of the horses' mouth that it is pointless to fight when one can't win.

It led us to ponder whether the resignation of Chief Justice Tun Md Raus Sharif and Court of Appeal President Tan Sri Zulkefli Ahmad Makinuddin was because their "extension" as Federal Court judges and subsequently their appointments could not survive the test of the Federal Court or some other reason/s?

If they had lost in court in the case brought by the Bar Council, the implication would be horrendous. Practically, all judgements that involved any of them could be appealed for review and only build up more backlog in court. Thus it is could be a gentleman move to uphold the court system

Otherwise, the dent on government expenditure would have angered Finance Minister, Lim Guan Eng. However, he is not likely to rebut as he did to Dato Seri Anwar's advice to watch his mouth.

Though Lim Kit Siang had called for their resignation, it was Papa Lim himself that was vocal during the 1988 judicial crisis. The Lims are silence now. So do Bar Council.

However, few opposition and senior lawyers did criticised this interference by the executive branch of judiciary. None of the pro-UMNO lawyers could be heard. Not even Perkasa, since a non-Malay and non-Muslim will likely be CJ.

Former CJ Tun Hamid Mohamed expressed his opinion on the issue in NST on Tuesday, June 19th, below:

It appears even post of chief justice has been politicised

By TUN ABDUL HAMID MOHAMAD

June 19, 2018 @ 7:58am

AS early as May 2017, when BN was still in power, I questioned the constitutionality of the “extension” of the tenure of Tun Md Raus Sharif as chief justice (CJ). I even suggested that he resign, which, I argued, if he were to do it then, he could do so honorably and with dignity and he would be remembered for that.

BN lost GE14 and Tun Dr Mahathir Mohamad became the prime minister of the PH government. Then, we heard the disturbing news that Raus went to see Dr Mahathir. Like anybody else, I assumed that Raus must have been called, asked or summoned to see the PM because, I do not think a CJ would, on his own, do that. In my article dated June 12, 2017, I used the word “asked”. Even then, I argued that it was not proper for the PM to “ask” Raus to go and see him and that the latter should have declined.

Following that, there was a more disturbing news: Raus went to see Tun Daim Zainuddin, the chairman of the Council of Eminent Persons, at the latter’s office. Again, I used the word “asked”, arguing that even if it was so, it was still improper for Daim to “ask” Raus to go and see him and for Raus to oblige.

On June 13, 2018, the chief registrar of the Federal Court issued a statement. The statement, inter alia, says:

“1. On May 15, 2018, the Chief Justice and the President of the Court of Appeal met with the Honorable Prime Minister and conveyed their lordships’ desire to resign.

2. However, their lordships had informed the Prime Minister that the resignations would take effect on a reasonable date to enable judicial matters to be resolved.

3. In pursuance thereof, the Chief Justice and the President of the Court of Appeal sent their resignation letters to His Majesty the Yang di-Pertuan Agong on June 7, 2018 and the resignation will take effect on July 31, 2018.

4.The resignations were approved by His Majesty the Yang di-Pertuan Agong on June 8, 2018 and notified through the letter of the Private Secretary, Bahagian Urusan Diraja, Istana Negara, dated June 11, 2018.” (My translation)

Reading the first paragraph, it appears as if the CJ, of his own volition, without being called, asked or summoned to go and see the PM, went to see him to convey his desire to resign. I find this difficult to accept for the following reasons:

1. Why should he do that? A CJ is not a political appointee who should resign if the government during which period he was appointed, is defeated in the general election.

2. Why should he do it barely five days after the election results were known?

3. Why should Raus wait until June 13 to disclose it, after he was pressured by politicians to resign? Would it not be better for him to say so before he was pressured to resign? If he were to do that then, he could be seen to resign with dignity. Now, nobody would believe that he did not resign under pressure.

4. Why did Raus wait until June 7 (three weeks later) to write to the Yang di-Pertuan Agong who approved it the following day?

5. When the PH politicians, both from PKR and DAP, including Lim Kit Siang, were publicly demanding the CJ to resign, why didn’t Dr Mahathir just say that Raus had seen him and conveyed his desire to resign? That would render the campaign to pressure Raus to resign and Daim’s “summoning him and demanding him to resign”, unnecessary. Furthermore, it would save the PH government from being seen as pressuring Raus to resign.

6. Indeed, as late as June 13, 2018, when the PM was questioned by reporters in Japan, not only did he defend Daim’s action but it was also reported: “Tun Dr Mahathir Mohamad said the council had indicated to the two judges — Chief Justice Tun Md Raus Sharif and Court of Appeal president Tan Sri Zulkefli Ahmad Makinudin — that it would be better if they resigned.

“Otherwise, the government may take action to remove them because we believe that the extension of their office as senior judges was not right,” he said, adding that the opinion was also shared by the Malaysian Bar and prominent lawyers.”

It implies that Raus had not conveyed his desire to resign to the PM.

7. If it is true that Raus had conveyed his desire to resign as early as May 15, 2018, Daim should have known about it and there was no necessity to summon Raus and demand his resignation.

Now that Raus has resigned, the PH government and its supporters from the Bar must be relieved. They may even feel that this is another victory for them: they are in power, nothing can stop them from removing whoever they want to remove.

This episode works in their favour because, first, since Raus has resigned, they do not have to wait for the Federal Court to deliver its judgment in the suit by the Advocates Association of Sarawak. Not only that, they are also spared the risk that the judgment might not be in their favour.

Secondly, the PH government is spared from taking action to remove Raus, a repeat of Tun Salleh Abas’ episode. However, I submit that even without the tribunal, it is already a repeat of that episode and is a dent on the image that the PH tried to portray during its election campaign.

In this respect, I must mention one man who has stood up against his own party’s chairman, the PM from his own coalition party, the Bar and others to voice his opinion that the “Prime Minister Dr Mahathir Mohamad’s defence of the Council of Eminent Persons for summoning the top two judges to demand their resignations, was ill-advised and against the rule of law.

“When it summons judges and demands their resignations, it will be seen as the government demanding their resignations which is in complete disregard for the principle of separation of powers,” he added.

“It is a basic hallmark of any democracy that the executive does not interfere in the affairs of the judiciary.”

The lawyer said criticising the appointments of Raus and Zulkefli was not wrong, but it was “quite another matter to summon them and demand their resignations”.

“This is plainly wrong. The Federal Constitution sets out the mode of removal of judges. This must be adhered to at all times in accordance with the rule of law.

“The CEP has clearly overstepped its boundaries in this case which cannot be condoned.”

On June 10, the same lawyer had said CEP chairman Daim should not interfere in matters where he had no standing.

He was referring to reports that Daim had summoned the two judges to ask for their resignations. (Freemalaysiatoday 13 06 2018)

That man is Ramkarpal Singh, a DAP member of parliament.

I agree entirely with what he says. Indeed, that was what I had said in my earlier articles. I congratulate him for his bravery and honesty. Indeed, if his father were alive, I believe he would have said the same thing.

The other thing that was said, including by the PM is that if Raus does not resign, the government will take action to remove him.

It should be noted that a CJ may be removed by a tribunal constituted under Article 125(3) of the Federal Constitution if it is proved that he has committed a “breach of any provision of the code of ethics prescribed under Clause (3B) or on the ground of inability, from infirmity of body or mind or any other cause, properly to discharge the functions of his office”.

Even if Raus’ extension is unconstitutional, does it fall under the provision quoted above? Is he to be blamed for it? So, the talk about taking him to the tribunal is baseless.

There is also a campaign to appoint Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum to replace Raus. I have expressed my view against politicians and lawyers aligned to the ruling party doing so as it shows that the judge is their man. If what the previous government did by extending the tenure of Raus was seen as the BN government placing its man as CJ, is what the PH government doing now any different?

I will not argue for or against Malanjum. I prefer to leave it to the Judicial Appointments Commission and the process that follows.

However, to those who speak so highly of Malanjum, I just would like to bring to their attention a report in Malay Mail Online on June 12, 2018. The title reads: “Shafie dares Musa to challenge legitimacy of Sabah CM post...”

It was reported: “Shafie said that he had spoken to the Chief Justice of Sabah and Sarawak Tan Sri Richard Malanjum and he was assured his appointment was constitutional.”

Why should he give legal advice to Shafie, knowing that the matter might end up in the Federal Court, where he is a judge? Is he trying to please the Sabah component of the ruling party?

With Raus’ resignation, the problem of his removal is settled without the court having to decide on the issue. The PH government and its supporters get what they want and, maybe, more when they succeed in placing their man in his place.

But, it reminds us of Tun Salleh Abas’ episode and what the BN government is alleged to have done, which may now be repeated by the PH government. More so, it is sad that it appears even the post of the CJ has been politicised.

There are many reasons behind such moves. Two vacancies will allow two judges from the Court of Appeal to move up.

As written in this blog before, majority of judges at that level have liberal tendencies, secular in outlook for a Constitution that acknowledge special status of Islam, and "anti-government" to the previous BN-led government.

This will feature prominently in the plan to undertake a massive exercise to review laws as mentioned by new AG, Tommy Thomas. [Read "Gearing up for law reform" in NST HERE.]

1MDB fix-up?
However, the opposition could likely suspect the sacking of AG and the two Federal Court judges is part of the grand scheme to sent former PM, Dato Najib to prison as promised in their election campaign rally.

If the motive behind 1988 interference was for Mahathir to hold on to power, the motive this time would likely be 1MDB and related cases.

MACC have submitted their investigation to AG. It is believed to be related to the low hanging fruit case of SRC than the more complex investigation on the alleged 1MDB money of US$681 million that went into Najib's personal account.

Words that seemed to be intentionally leaked that Najib would be charged from misappropriation of property and money laundering.

A source close to the new government confirmed it as relating to the credit card issue of SRC case. It would have been preferred that it be on the allegedly bogus investments abroad of SRC.

This would be a similar case against the late Tan Sri Eric Chia linked to Tun Dr Mahathir's failed and loss makin Perwaja steel mill.

During his visit to Japan, Mahathir told the press that evidence is still being gathered. It made opposition side excited.

It was classic Mahathir look one way to do other way tactic. Upon his return, he has made a U turn to somewhat say case is ready.

Whether it is for real or mere theatrics, he claimed 3 years ago that he has all the evidences. On June 12, AG was reported to only plan to put together two teams to study.

In the meanwhile, Najib told Reuters HERE that he denied knowledge to the embezzlement by management and the "handbags" of Datin Seri Rosmah Mansor were gifts.

The proofs of gifts will be known should it go to trial. Key to the prosecution case is to prove criminal intent or mens rea in Latin.

The collaborative evidence of witness will be needed but the authorities are still doing the manhunt.

The latest weekly The Edge seemed to be prepping up the public on Jho Loh, Tan Kim Loong, Cassie Looi, etc.

Without them being interviewed and appearing in court, it will not be a strong case. Any conviction will look similar to Anwar's first sodomy trail prosecuted by Tan Sri Gani Patail.

It is heard Tan Sri Gani Patail will be in the prosecution team. Will he cut a similar deal in the manner Dato Dr Khir Toyo was fixed by "cajolling" Shamsuddin Haryoni to be state witness?

Former US AG, John Ashroft will be on Najib's defense team.

Any hanky panky will draw world attention on our judiciary and turn-off foreign investors. As it is Malaysia has lost a major plus point that attract foreign investors, which is political stability.

2 comments:

Anonymous
said...

What is your objections to non-Malays? They are entitled to equal rights under the Constitution as Malaysian citizens. You know as well as anyone that "Special rights" do not extend to legal appointments or ministerships. Non-Malays have occupied such high positions previously. It is UMNO that brought shame and ruin on Malays.